Information filed in the Supreme Judicial
Court for the county of Suffolk on January 7, 2019.
The case was heard by Gaziano, J.
Pamela A. Harbeson, Assistant Bar Counsel.
Thomas A. Mullen for the respondent.
Elizabeth N. Mulvey, for former members of
the Board of Bar Overseers, amici curiae, submitted a brief.
LOWY, J.
In a disciplinary case involving intentional overbilling of multiple
clients, bar counsel appeals from the order of a single justice of this court
suspending the respondent attorney, Doreen M. Zankowski, from the practice of
law for six months.[1], [2] The single justice acknowledged the respondent's
"admittedly cavalier attitude toward client billing," but concluded
that "the large number of hours she reported in 2015 is not substantial
evidence that all or even most of the 450 hours at issue in this case were
fraudulently billed." Our focus,
however, is not on the quantum of excessive fees that were billed, but on the
fundamental dishonesty inherent in the respondent's client billings
themselves. It is not the sheer number
of unworked hours that establishes the misconduct but, rather, the dishonesty
manifested by billing for them at all.
The evidence establishes unequivocally
that the respondent intentionally billed for services that were not
rendered. It supports the hearing
committee's conclusion, adopted by the Board of Bar Overseers (board), that the
respondent's conduct involves "dishonesty, fraud, deceit or
misrepresentation," in violation of Mass. R. Prof. C. 8.4 (c), as
appearing in 471 Mass. 1483 (2015), and adversely reflects on her fitness to
practice law, in violation of Mass. R. Prof. C. 8.4 (h). The evidence also establishes violation of
Mass. R. Prof. C. 1.5 (a), as appearing in 463 Mass. 1320 (2012). In the circumstances, we accept the board's
recommendation that a two-year term suspension is both appropriate and
consistent with sanctions imposed in comparable cases.
1.
Prior proceedings. On February
27, 2017, bar counsel filed a one-count petition for discipline against the
respondent alleging that, during 2015, she intentionally inflated the amount of
attorney time billed to her four largest clients by approximately 450 hours,
falsely ascribing to herself and other attorneys work that was not actually
performed. By adding these hours to her
bills, the petition alleged, the respondent caused her firm to charge and
collect more than $200,000 in fees that were not earned, in violation of Mass.
R. Prof. C. 1.5 (a) (charging and collecting clearly excessive fees); Mass R.
Prof. C. 8.4 (c) (conduct involving dishonesty, fraud, deceit, or
misrepresentation); and Mass R. Prof. C. 8.4 (h) (conduct that reflects
adversely on fitness to practice law).
After four days of hearing, at which the
respondent and eight other witnesses testified, on May 29, 2018, the hearing
committee issued a report detailing its findings of fact, conclusions of law,
and recommended disciplinary sanction. A
majority of the committee concluded that bar counsel proved that the respondent
"intentionally added to her bills time for work that was not
performed," and recommended that she be suspended from the practice of law
for one year and a day.[3] Both bar counsel and the respondent appealed to the
board.
After review, the board denied the
respondent's request for a new evidentiary hearing and adopted most of the
hearing committee's factual findings and conclusions of law.[4] It concluded,
however, that based on the established misconduct, a one-year suspension was
too lenient. The board voted to file an
information in the county court recommending a two-year suspension from the
practice of law.
A single justice of this court held a
hearing and, after receiving additional briefing, issued a decision concluding
that a six-month suspension was appropriate.
The single justice reasoned that while the evidence established that the
respondent increased the hours attributed to other attorneys on her bills, her
testimony was that she had worked those hours herself. In the single justice's view, although the
bills were false and misleading -- to the extent they did not accurately identify
the attorney who had rendered services -- the high number of billable hours
that she reported did not constitute substantial evidence that the services
were not rendered at all. The single
justice declined to weigh the respondent's failure to express remorse in
aggravation, and he concluded that her clients' satisfaction with her services
should be weighed in mitigation. In the
circumstances, the single justice concluded that a six-month suspension was
warranted. Bar counsel appeals.
2.
Factual background. We summarize
the background facts found by the hearing committee and adopted by the board,
concluding that they are supported by substantial evidence. See S.J.C. Rule 4:01, § 8 (6), as appearing
in 453 Mass. 1310 (2009). We reserve
certain details concerning the respondent's billing practices for later
discussion.
The respondent was admitted to the bar of
the Commonwealth in 1991. After working
in the legal department of an international engineering firm, and after more
than a decade in the construction practice of one law firm, on October 1, 2011,
she began her employment at a different law firm (firm) as an
"income/salaried partner in the commercial litigation
department." In late 2014 or early
2015, the respondent became an equity partner of the firm, effective January 1,
2015. Unlike associate attorneys and
income or salaried partners, the firm's equity partners were paid based on
their placement each January in a compensation "tier" for the coming
year. Equity partners also received a
percentage of the firm's profits for the prior year, and merit bonuses based on
their prior year's performance.
Decisions about tier placement and merit bonuses were based, in part, on
fee receipts generated or anticipated by each partner.
Before her January 1, 2015, transition to
equity partner, the respondent earned approximately $700,000 as an income or
salaried partner, exclusive of merit bonuses.
As an equity partner, however, she was placed in a lower base salary
tier of $575,000. Although she was
eligible for a share of the firm's profits and a bonus, and had the potential
to earn more than she had as an income or salaried partner, her salary tier as
an equity partner was $125,000 less than she had been receiving as an income or
salaried partner.
During 2015, the respondent generally did
not enter or maintain contemporaneous billing records of her time. Instead, she directed her assistant to draft
time entries for her review. The
assistant, who often had no knowledge of the time the respondent spent on
tasks, attempted to reconstruct the respondent's daily activities using
handwritten notes that did not, for the most part, attribute specific amounts
of time to the described tasks. She also
used e-mail messages, correspondence, pleadings, and calendar entries. The assistant "guess[ed]" at the
amount of time spent on tasks, creating daily time reports on a weekly basis
for the prior week's work.
Each week, the respondent reviewed the
daily time reports created by her assistant, adjusted the time charged for each
task, and submitted the reports to the firm's accounting department. On a monthly basis, the accounting department
provided the respondent with draft bills for the matters on which she was the
billing partner. In addition to her own
time entries, the draft bills included the time entries for the other attorneys
who had worked on the matter. The
respondent edited the draft bills by adding, subtracting, or consolidating time
entries for herself and the other attorneys who worked on her clients' matters.
Between March 2015 and November 2015, the
respondent added more than 450 hours of time to the hours reflected on her
clients' draft bills, primarily with respect to two complex litigation matters,
amounting to approximately eight to ten hours per week added to time previously
entered. She added approximately one
hundred hours to her own time, 110 hours to one senior associate attorney's
time, and 240 hours to the entries of five other associate attorneys. Although the respondent testified that the
additional hours reflected her own time spent working on those matters, the
hearing committee declined to credit the testimony, finding instead that the
clients were intentionally, dishonestly, and excessively billed for the time.
According to the firm's records for 2015,
the actual amount of the respondent's final bills to clients exceeded the
original amount reflected on the draft bills by approximately $216,000. Concluding that the bills apparently had been
inflated beyond the work actually performed, the firm reported the matter to
the board. The firm either refunded to
the clients the amounts it considered to have been overbilled or credited them
that amount.
3.
Standard of review. On appeal,
bar counsel contends that the single justice erred in determining that certain
of the hearing committee's findings (as adopted by the board) were not
supported by substantial evidence. Bar
counsel also contends that the sanction imposed was markedly disparate from the
discipline imposed in comparable cases.
See Matter of Segal, 430 Mass. 359, 367 (1999). We "review the record to determine
whether the single justice's decision is supported by sufficient evidence, free
from errors of law, and free from any abuse of discretion." Matter of Tobin, 417 Mass. 92, 99 (1994),
citing Matter of Kenney, 399 Mass. 431, 434 (1987).
The subsidiary facts found by the board
must be upheld "if supported by substantial evidence, upon consideration
of the record, or such portions as may be cited by the parties." S.J.C. Rule 4:01, § 8 (6). See Matter of Abbott, 437 Mass. 384, 393-394
(2002). It is error to do
otherwise. In addition, "[o]ur
rules concerning bar discipline . . . accord to the hearing committee the position
of 'the sole judge of the credibility of the testimony presented at the hearing.'" Matter of Saab, 406 Mass. 315, 328 (1989),
quoting S.J.C. Rule 4:01, § 8 (3), as appearing in 381 Mass. 784
(1980). In short, "[w]hile we
review the entire record and consider whatever detracts from the weight of the
board's conclusion, as long as there is substantial evidence, we do not disturb
the board's finding, even if we would have come to a different conclusion if
considering the matter do novo."
Matter of Segal, 430 Mass. at 364.
In this case, the evidence is such
"as a reasonable mind might accept as adequate to support" the
board's conclusion that the respondent's conduct violated the rules of
professional discipline. Matter of
Segal, 430 Mass. at 364, quoting G. L. c. 30A, § 1. We determine that the board's findings are
supported by substantial evidence, conclude that the misconduct charged in the
petition has been established, and accept the board's recommendation as to
sanction.
4.
Evidence of misconduct. Although
we summarized the respondent's billing practices above, we describe them in
greater detail here as they relate to the misconduct charged and the evidence
that establishes it.
There is no dispute that the respondent
did not keep a contemporaneous log of her work.[5] Although she made notes
concerning her work on one of several notepads, the notations rarely reflected
the time she devoted to any particular task.
In her answer to the petition for discipline, the respondent explained
that "it was her practice to satisfy the firm's requirement of weekly
submission of her time by having her [assistant] prepare preliminary draft time
sheets based on [the respondent's e-mail system] calendar, email in-box,
correspondence [file], pleadings and notes." She was aware that the assistant "usually
had no idea how much time [the respondent] spent on each matter." The product of the assistant's efforts
"was not intended to be comprehensive with respect to the work it
described (as it was based on fragmentary data) and more importantly it was
never intended to be accurate as to the amount of time spent (since most of the
time entries were meant as generic place holders to be replaced later by [the
respondent] with specific periods of time)."[6]
At the end of each week, the respondent's
assistant printed a copy of the time entries she had drafted, which the
respondent regarded as "tentative drafts intended to be heavily
edited" particularly as to "the attribution of specific periods of
time for individual items of work."
The respondent made handwritten notes on the printed weekly reports,
most of which adjusted the amount of time associated with each recorded task to
"substitute solid numbers for the place holders with respect to time spent
. . . based on her specific recollections and her general knowledge
of how long particular tasks typically took her." Less frequently, she edited the narrative
description of the work performed. At
the hearing, the respondent testified that, during this weekly phase, she
"was only looking at the information on the time entry report [rather
than] looking for what was missing[,] because [she] didn't have the time to do
it."
At the beginning of each month, the
respondent received a draft or "pre-bill" from the firm's accounting
department for each client matter on which she was the designated billing partner. These prebills chronologically listed all the
work performed by attorneys who worked on the client matter during the prior
month. According to the respondent, her
billing practice anticipated that her review of a prebill would be the first
time that she "looked at what was there in the context of what [she]
missed for [her] own time." The
respondent explained that when she made additions to her prebills, she
"drew on materials that her secretary did not utilize, including text
messages, outbound emails, records of telephone calls, miscellaneous notes, and
her own memory."
At the hearing, the respondent testified
that she added 450 hours to the draft or prebills, allocating that time to time
her associates billed even though she performed the work. She testified that she did this for two
reasons: (1) it would have been
administratively burdensome to create new time entries for herself; and (2) it
gave the clients the benefit of her work, but at a lower hourly rate billed by
associate attorneys. The hearing
committee declined to credit those explanations and concluded that the evidence
established that the respondent billed for services that were not provided.
We recognize, as the single justice also
observed, that the respondent worked exceedingly hard, and her clients
testified that they were satisfied with her work. The single justice concluded that while there
was "substantial evidence to support at least some subsidiary findings
underpinning the board's decision that the respondent intentionally billed
clients for time she did not work," the evidence did not support the
finding that "the respondent necessarily over-billed clients intentionally
for all or substantially all of the hours for which the firm refunded fees or
credited to clients."
Regardless of the precise number of the hours
overbilled, however, the evidence amply established that the respondent added
fictional hours to her clients' bills.
The hearing committee concluded, and the board accepted, that the
respondent's client bills were intentionally false and fraudulent in two
aspects. With respect to the first
aspect, there is no dispute that the respondent's client bills failed
accurately to reflect work performed by the identified attorney. We agree with the single justice that the
bills were false and fraudulent to that extent.
Even if the work was done, it was not done by the attorney identified on
the bill.
With respect to the second aspect, the
petition for discipline charged that the respondent intentionally charged multiple
clients for legal services that were not rendered. To be sure, as the single justice recognized,
the respondent testified that she added time to her associates' hours for
services she rendered that were "not captured on my calendar, not on my
notepad and not in my inbox and not in my correspondence file," but that
she nonetheless worked each of those 450 added hours.
Other than the respondent's own testimony,
however, there is nothing to support her claim.
The hours were not reflected on the respondent's records and somehow
"missed" by her assistant when she entered the respondent's time in
the firm's timekeeping system. There
were no documents or other work product that substantiated the claim. On twelve different dates, if the hours the
respondent claimed she worked but attributed to associate attorneys were added
to the hours the respondent billed under her own name (which the respondent
testified would have been the correct allocation of time), she would have
worked more than twenty-four hours.
In declining to credit the respondent's
testimony, the hearing committee relied on the respondent's billing records and
the testimony of other attorneys. It
observed:
"We note
that, in 2015, the respondent made three non-business trips to Hawaii and took
a vacation in Europe from September 11-25.
In 2015, she also went to San Diego, Denver, Chicago, New York, and
several cities in Texas. Generating
3,600 billable hours in a year would require working over 9.86 billable hours a
day, seven days a week, for 365 days.
Between the respondent's vacations and her nonbillable client activities
[totaling over 700 non-billable hours], we do not credit that she worked a
total of 3,600 billable hours in 2015." (Citation omitted.)
When the more
than 700 additional nonbillable hours that the respondent reported working are
added to her billable hours, the respondent would have had to work an average
of 11.78 hours every day for the entire year.
Because the hearing committee's decision not to credit the respondent's
testimony is not "wholly inconsistent with another implicit finding"
(quotation and citation omitted), Matter of Murray, 455 Mass. 872, 880 (2010),
it should not have been rejected.
This is not a case in which the hearing
committee's findings rested on mere disbelief of the respondent's
testimony. Rather, the evidence adduced
at the hearing amply supports the conclusion that the respondent intentionally
inflated the hours billed well beyond those that were worked. On thirteen occasions, for example, the
respondent added an hour or more to a senior associate attorney's hours,
without changing the billing narrative or providing an explanation for
modifying the associate's hours. This
amounted to twenty-seven hours. The
hearing committee credited the testimony of the senior associate attorney that
his time entries were made contemporaneously, and that the entries were
accurate when he entered them. The
respondent either provided no explanation or the hearing committee determined
that the explanation she did provide lacked candor.
In addition, the hearing committee found
that the respondent added a total of 143.1 hours to three other associate
attorneys' time because, she said, reviewing those entries weeks later
"jogged her memory" of work she herself performed even though she had
not recollected the time during her weekly review of her own bills. The hearing committee declined to credit that
explanation. That determination is not
inconsistent with the hearing committee's other findings.
In addition to adding time to her
associate attorneys' entries, on at least seven different days, the respondent
billed her clients for her attendance at depositions that she did not
attend. This accounted for an additional
51.40 hours. Although the respondent
testified that she worked on items related to the depositions during that time,
the senior associate attorney who took the depositions testified that, apart
from minor edits and brief discussions, he received nothing substantive from
the respondent. While the respondent
testified that she listened to the depositions by telephone, not only did the
hearing committee credit the associate's testimony that that did not occur, but
there was evidence that the respondent was involved in other depositions or hearings
at the relevant times. In the
circumstances, the hearing committee was warranted in drawing an "adverse
inference from the respondent's failure to offer materials, readily available
to her, that would presumably support her version of the facts if true."
In short, the substantial evidence
supports the hearing committee's findings, adopted by the board, that the
respondent intentionally billed her clients for legal services that were not
rendered by adding hundreds of hours to the bills. To establish the misconduct, bar counsel was
not required to prove that each of the 450 hours intentionally added to the
draft bills was fraudulent. It suffices
to say that fraudulent billing was established and supported by the substantial
evidence. See Matter of Goldstone, 445
Mass. 551, 564-565 (2005) (fraudulent billing established based on sample of
attorney's files). As the board
concluded, the "conclusion that the respondent intentionally overbilled
her clients finds ample support in the overall record."
5.
Appropriate sanction. Turning to
the question of sanction, we review "the sanction ordered by the single
justice [to ensure that it] is not markedly disparate from what has been
ordered in comparable cases," mindful that the board's recommendation is
entitled to substantial deference.
Matter of Sharif, 459 Mass. 558, 563 (2011), quoting Matter of Doyle,
429 Mass. 1013, 1013 (1999). See Matter
of Anderson, 416 Mass. 521, 526 (1993).
Each bar discipline case is decided on its own merits, see Matter of Strauss,
479 Mass. 294, 300-301 (2018), and each attorney receives the disposition that
is "most appropriate in the circumstances," Matter of the Discipline
of an Attorney, 392 Mass. 827, 837 (1984).
In making that determination, we "consider what measure of
discipline is necessary to protect the public and deter other attorneys from
the same behavior." Matter of
Concemi, 422 Mass. 326, 329 (1996). See
Matter of Foley, 439 Mass. 324, 333 (2003); Matter of Kerlinsky, 428 Mass. 656,
664, cert. denied, 526 U.S. 1160 (1999), quoting Matter of Finnerty, 418 Mass.
821, 829 (1994) ("primary factor" is "the effect upon, and
perception of, the public and the bar").
We agree with the board and the single
justice that the admitted facts concerning the respondent's billing procedures
as intentionally practiced, particularly respecting her intentional inflation
of the time accurately ascribed to tasks performed by her associates, are, in
and of themselves, enough to demonstrate that a clearly excessive fee was charged. See Mass. R. Prof. C. 1.5 (a). The bills dishonestly misrepresented the
legal work described and who performed it, and this dishonesty reflects poorly
on the respondent's fitness to practice as a member of the legal
profession. Mass. R. Prof. C. 8.4 (c),
(h).
The hearing committee also determined, and
the board accepted, that by billing her clients and causing her firm to collect
fees for hours not actually worked, the respondent violated Mass. R. Prof. C.
1.5 (a). See Matter of Rickles, 30 Mass.
Att'y Discipline Rep. 340, 345 (2014); Matter of Barach, 22 Mass. Att'y
Discipline Rep. 36, 48 (2006) (two-year suspension for excessive billing);
Matter of Broderick, 20 Mass. Att'y Discipline Rep. 53, 54 (2004) (two-year
suspension for charging excessive fees, failing to returned unearned portion of
fee, and other misconduct). A majority
of the committee also found, and the board accepted, that by submitting bills
that were inaccurate, inflated, or false, and by billing and collecting fees to
which she and the firm were not entitled, the respondent engaged in conduct
involving dishonesty, fraud, deceit, or misrepresentation, in violation of
Mass. R. Prof. C. 8.4 (c), and conduct adversely reflecting on her fitness to
practice law, in violation of Mass. R. Prof. C. 8.4 (h). See Matter of Beaulieu, 29 Mass. Att'y
Discipline Rep. 33, 34 (2013). We agree.
Bar counsel contends that the six-month
term suspension from the practice of law imposed by the single justice fails to
recognize the gravity of the respondent's intentional, dishonest
misconduct. More specifically, bar
counsel contends that the six-month suspension (1) is markedly disparate from
the penalties imposed in comparable cases; (2) was premised upon the single
justice's improper substitution of his own de novo credibility findings for
those of the committee, and his insufficiently deferential review of the
sufficiency of evidence to support the board's findings; and (3) reflected
irrelevant and unproved mitigating factors, particularly the satisfaction of
the respondent's clients with the representation they received and their belief
that the fees charged were fair and reasonable.
In our assessment, it is the established
dishonest nature of the respondent's billing that differentiates this case from
cases involving charging "excessive" fees. See Matter of Fordham, 423 Mass. 481 (1996),
cert. denied sub nom. Fordham v. Massachusetts Bar Counsel, 519 U.S. 1149
(1997). In Matter of Fordham, supra at
486, a sophisticated corporate client agreed "with open eyes after
interviewing other lawyers with more experience in such matters" to hire
an attorney, knowing that he would be learning a new area of law. The parties stipulated that the lawyer
"acted conscientiously, diligently, and in good faith in representing [the
client] and in his billing in this case."
Id. at 484. He achieved an
acquittal in the case. In the
circumstances, the attorney received a public reprimand for charging, but not
collecting, an excessive fee. Id. at
495.
Knowing submission of false or fraudulent
bills, however, is not equivalent to charging an excessive fee. In Matter of Goldstone, 445 Mass. at 552, for
example, an attorney was disbarred for conduct including overbilling and collecting
from a corporate client "hundreds of thousands of dollars in fees and
costs to which he was not entitled."
In that case, we concluded that "[w]here an attorney lacks a good
faith belief that he [or she] has earned and is entitled to the monies, such
conduct constitutes conversion and misappropriation of client funds." Id. at 566.
Where the attorney's misconduct was aggravated by his "threat[s] to
retain more funds to which he was not entitled unless [the client] paid,"
id., and where the attorney failed to make restitution to the client until bar
counsel filed a petition for discipline, and then only repaid a portion of what
was due, the court concluded that disbarment was warranted. Id. at 566-567. See Matter of Schoepfer, 426 Mass. 183 (1997)
(indefinite suspension of attorney who temporarily converted estate's funds for
his own use).
Other cases involving intentional
overbilling, but less egregious misconduct than in Matter of Goldstone, have
warranted to two-year suspension. See
Matter of Burghardt, 29 Mass. Att'y Discipline Rep. 70 (2013) (stipulation to
one year and a day suspension for submitting $6,300 in false invoices to firm
for reimbursement of personal expenses; lawyer reimbursed firm); Matter of
Beaulieu, 29 Mass. Att'y Discipline Rep. at 34 (four-year suspension where attorney
made restitution); Matter of Broderick, 20 Mass. Att'y Discipline Rep. at 54-56
(two-year suspension for refusing to return unearned portion of advance fee and
generating false billing records to justify total fee, in violation of Mass. R.
Prof. 1.5 [a], and 8.4 [c], [d], and [h]; and other misconduct). In Matter of Burghardt, not only was the
amount considerably less than is involved in this case, but it did not involve
a pattern of billing for services not rendered.
Although Matter of Broderick, 20 Mass. Att'y Discipline Rep. at 54-55,
included some additional misconduct that might have warranted an admonition or
public reprimand by itself, the respondent's billing misconduct in this case is
more egregious than that in Matter of Broderick because of its repetitive
nature, involving multiple clients, over a period of months.
Like both the hearing committee and the
board, we have considered the facts asserted by the respondent in mitigation
and agree that mitigation of sanction is not warranted. That said, we recognize that -- by all
accounts -- the respondent performed an extraordinary volume of work in
2015. She testified that, to carry that
workload, "[s]he neglected her physical health and was often
sleep-deprived" due to "routinely work[ing] over 12 hours a day, and
regularly . . . on holidays, weekends and even when nominally on
vacation." By all accounts, her
legal work was of high quality. Her
clients, who were in constant contact with her and aware of the work she was
doing for them, did not complain about the amount of time she billed to their
matters. In addition, the respondent's
sister was diagnosed with a serious illness.
The hearing committee considered the
respondent's testimony. It observed, as
we do, that there was no medical testimony or other evidence connecting in any
causal manner the respondent's testimony about the stress she suffered, and the
misconduct in which she engaged. While
her circumstances are troubling, the evidence does not demonstrate that these
factors were a substantial contributing cause of the misconduct, and they
cannot be weighed in mitigation. See
Matter of Strauss, 479 Mass. at 302 n.11; Matter of Luongo, 416 Mass. 308, 311
(1993). See also Matter of Corbett, 478
Mass. 1004, 1006 (2017) (pattern of misconduct demonstrated respondent's
psychological condition did not "have had a substantially contributing
role . . . instead [the misconduct] demonstrates a relatively clear
and calculating [attorney], aware of [her] misdeeds").
In addition, the respondent also asserted,
and the single justice accepted, that her clients were sophisticated consumers
of legal services and that their failure to object to the bills should be
considered in mitigation. The hearing
committee and the board correctly declined to weigh that factor in
mitigation. Not only did the clients not
testify that they were aware that time had been added to their bills, but
advance consent to excessive fees is not mitigating. See Matter of Fordham, 423 Mass. 481. Likewise, "good work is to be expected
of attorneys; it is not a factor ordinarily considered in
mitigation." Matter of Corbett, 478
Mass. at 1006. Finally, while the
respondent has no previous disciplinary record, and has provided pro bono
services, neither mitigates misconduct.
The absence of prior discipline is to be expected, see Matter of Alter,
389 Mass. 153, 157 (1983), and community service, a favorable reputation, and
provision of pro bono services, while laudable, do not offset the effects of
misconduct. See Matter of Kennedy, 428
Mass. 156, 159 (1998).
Although they found no special mitigating
factors, the hearing committee and the board weighed in aggravation the
respondent's substantial experience in the practice of law, see Matter of
Moran, 479 Mass. 1016, 1022 (2018), and that she testified evasively and
demonstrated a lack of candor in her testimony.[7] See Matter of Eisenhauer,
426 Mass. 448, 455-456, cert. denied, 524 U.S. 919 (1998). They also weighed in aggravation that the
respondent had not acknowledged the nature, effects, or implications of her
misconduct.[8] See Matter of Bailey, 439 Mass. 134, 152 (2003). While an attorney is entitled to defend
against allegations of a petition for discipline, the hearing committee may
determine whether to credit the testimony and evidence, and it may consider in
aggravation any lack of candor it finds.
See Matter of Hoika, 442 Mass. 1004, 1006 (2004). See also Matter of Corbett, 478 Mass. at
1006. Like the board, we accept those
factors in aggravation.
In considering the appropriate sanction,
"the board's recommendation is entitled to substantial
deference." Matter of Tobin, 417
Mass. 81, 88 (1994). In the totality of
the circumstances present here, see Matter of McInerney, 389 Mass. 528, 531
(1983), we conclude that a two-year suspension from the practice of law is
warranted.
6.
Attorney well-being. As stated,
the evidence offered in mitigation in this case does not demonstrate a causal
connection between the respondent's workload and familial pressures, and her
misconduct. Although the evidence is
dispositive here, we take the opportunity to acknowledge the role that lawyer
well-being plays in the context of both fitness to practice and administration
of justice.
The troubled state of lawyer well-being, including
"major issues negatively affecting well-being in the legal
profession," has been well documented.
See Supreme Judicial Court Steering Committee on Lawyer Well-Being: Report to the Justices, at 5 (July 15, 2019),
https://www.mass.gov/doc/supreme-judicial-court-steering-committee-on-lawyer-well-being-report-to-the-justices
[https://perma.cc/N63N-2KSX] (Well-Being Report). Among the issues identified in the report are
the "relentless pace [that] makes it very difficult for lawyers to set
boundaries between work and the rest of life"; the "pure volume of
work expected." Id. at 8. Those issues appear amply illustrated in this
case. The Well-Being Report also cites
stigma associated with seeking help on a variety of well-being issues. Id. at 5-8.
It is not just lawyers' health and
personal life that pay the price for this troubled state. As the Well-Being Report makes plain, lawyer
well-being is connected to competence, ethical behavior, and professionalism. See Well-Being Report, Appendix 11, at
1. See also The Path to Lawyer
Well-Being: The Report of the National
Task Force on Lawyer Well-Being, at 8 (August 14, 2017),
https://lawyerwellbeing.net/wp-content/uploads/2017/11/Lawyer-Wellbeing-Report.pdf
[https://perma.cc/D2DG-KL7K] (National Well-Being Report) ("lawyer
well-being influences ethics and professionalism"). Recognizing that connection, taking steps to
promote lawyer well-being, and supporting the lawyers who avail themselves of
those measures will surely enhance the physical and mental health of individual
lawyers and improve the quality and ethical standing of the profession as a
whole.
To be clear, the pressures faced by
lawyers in practice, including those described in the well-being report, do not
excuse professional misconduct. They
may, however, help to "explain and put into perspective the underlying
reasons" for some of it. Matter of
Balliro, 453 Mass. 75, 88 (2009). We
recognize that "[if] a disability caused a lawyer's conduct, the
discipline should be moderated, and, if that disability can be treated, special
terms and considerations may be appropriate." Matter of Schoepfer, 426 Mass. at 188. See Matter of Sharif, 459 Mass. at 562; Matter
of Ring, 427 Mass. 186, 191 (1998) (attorney's depression causally related to
misconduct).[9]
7.
Conclusion. By all accounts, the
respondent worked exceptionally hard, was one of the firm's highest revenue
producers, and achieved excellent results for her clients. Some of her large, institutional clients
testified to their satisfaction with her work and her availability to
them. But intentionally billing for work
that was not performed, or not performed by the person to whom it is ascribed,
is professional misconduct. Like the
board, "we would hesitate to censure the occasional, innocent mistake in
timekeeping." The evidence in this
case, however, establishes that the respondent intentionally engaged in billing
practices so prone to error as to display "reckless indifference to whether
. . . clients [a]re honestly charged for [an attorney's]
services," and added hundreds of hours of time to client bills for
services that were not rendered.
Attorneys must adhere to honesty in their billing practices. In a relationship premised on trust, clients
are entitled to nothing less.
The case shall be remanded to the county
court, where an order suspending the respondent for a period of two years shall
enter.
So ordered.
footnotes
[1] This bar discipline appeal is subject
to S.J.C. Rule 2:23, 471 Mass. 1303 (2015).
After review of the preliminary memorandum and record appendix filed
pursuant to the rule, we directed the appeal to proceed in the regular course.
[2] We acknowledge the amicus brief filed
by former members of the Board of Bar Overseers.
[3] A dissenting member agreed that the respondent's
bills were inaccurate but concluded that the respondent "lacked the intent
to deceive or to defraud her clients."
The member would have imposed a public reprimand for her "billing
protocols."
[4] As discussed infra, the board rejected
two factors the hearing committee found in aggravation. It determined that restitution was not due,
because the respondent did not herself receive the wrongfully billed amounts,
and the firm returned those amounts to the clients. Also, the board determined that it did not
need to reach the issue whether the respondent was motivated by "greed and
self-interest."
[5] The record indicates that some of the
firm's lawyers kept contemporaneous electronic time entries. Others kept manual time records, and their
assistants input that information into the firm's timekeeping software.
[6] At the hearing, the assistant
testified that the timekeeping software required a user to enter some amount of
time greater than zero in order to log a time entry. Unless a specific amount of time was blocked
out on the respondent's calendar for a specific task, she typically entered two
tenths of an hour for this purpose, or sometimes guessed.
[7] The hearing committee also weighed in
aggravation that the respondent was motivated by greed and self-interest. See Matter of Pike, 408 Mass. 740, 745
(1990). The board did not adopt that
finding and did not weigh it in aggravation of sanction. We do not, either.
[8] Although the hearing committee also
weighed in aggravation the respondent's failure to provide
"restitution," the board rejected the finding. The firm refunded the overcharged fees, and
the respondent received no portion of them.
Because the overcharged fees were not retained by the respondent or the
firm, restitution is not at issue.
[9] We urge leaders of the bar,
supervisors in the public sector, partners in law firms, private employers, and
individual attorneys to be mindful that attorney well-being and competence are
interconnected, and that "lawyer well-being influences ethics and
professionalism." National
Well-Being Report at 8.